Getting ready for a debt collection case in small claims court

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By
Center for Social Justice at Western New England University School of Law
Based On
an article by South Coastal Counties Legal Services, with funding from American College of Bankruptcy Foundation
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If you ever did not pay back:

  • money you borrowed,
  • the balance on a credit card (including with a chain store), 
  • what you owe on bills, 
  • a car payment, or
  • any other debt,

you may have gotten a letter in the mail trying to collect that debt and interest, and saying you have to go to court. Debt collection agencies usually sue in small claims court when the claim is $7,000 or less.

It is important to know your rights and the steps to follow. Also, sometimes what the lawsuit claims may not be right. Or the person or company you owe money to did not follow the law in their steps to sue you.

Remember: The plaintiff is the person or company bringing the lawsuit. The defendant is the person or business being sued.

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What papers do I get?

First, you get a Statement of Small Claim and Notice of Trial form in the mail. This is a summons to small claims court. It means you have to go. It also has other important information:

  • Docket number (this is the case number).
  • Plaintiff’s name (a person or a debt collection agency).
  • Original creditor’s name (a store, credit card company or a bank).
  • Plaintiff’s lawyer (if any).
  • Amount they say you owe.
  • Last four digits of the account number and last payment date.
  • Your next court date.
  • The court division where the plaintiff filed the claim. If the hearing is in person, this is where the hearing takes place.
  • Meeting ID number and instructions if it’s a Zoom hearing.
Who is suing me and why?

Look at the section that says, “Plaintiff's Information.” If you don’t recognize the plaintiff’s name, the plaintiff may be a debt buyer. A debt buyer is a collection agency that buys the debt from the original creditorThe original creditor is the company that gave you the loan or credit. Once they buy the debt, the collection agency owns the debt and can collect it.

If the plaintiff is a debt buyer, you may have extra defenses in your case. For example: if the original creditor did not sell your debt to the debt buyer in the right way. See “How do I defend myself in my case?”

Look at the plaintiff’s claim section on the Statement of Small Claim and Notice of Trial form. It says why the plaintiff thinks you owe them money. The claim section lists:

  • The amount the plaintiff says you owe them, 
  • The last four digits of your account number 
  • Your last payment date, and
  • The amount of the last payment made.
What do I do about a Statement of Small Claim and Notice of Trial?

When you get the Statement of Small Claim and Notice of Trial, do these things:

  1. Read the Statement of Small Claim and Notice of Trial form carefully.
  2. Get a folder to keep this page and your other court papers safe. Get a notebook to take notes to prepare for court.
  3. Write in your notebook any important information on the Statement of Small Claim and Notice of Trial. Also, note anything that isn’t right. When you go to court you get a chance to talk about any information on the Statement of Small Claim and Notice of Trial that is wrong. This might be an incorrect name or address. 
  4. Make sure you put the court date in your calendar. Make sure you go to the court hearing!
  5. Try to get a lawyer to help, or ask a lawyer a question at Mass Legal Answers Online.  
Where do I go to court?

Look at the top section of the Statement of Small Claim and Notice of Trial form. It has the court and division where the plaintiff filed the claim, which is where you need to go. The court is in the district court where either you or the plaintiff lives or works. The bottom right section of the form lists the name and address of the court.

It is important to call the court before your scheduled hearing to:

  • Double-check the date and make note of it,
  • Make plans to go to court on that date,
  • Ask for the address and make note of it, and
  • Ask for instructions on how to attend the hearing.
When do I go to court?

Look at the bottom right section of the Statement of Small Claim and Notice of Trial form. It tells you:

  • The name of the court where you need to go, 
  • Address of the court, 
  • Date of the hearing, and 
  • If it is on Zoom, it gives information on how to connect.

Call the clerk’s office for the court listed to get information on how the hearing is held and where to go in the building. You can find the phone number here.

Go to court or connect via Zoom on the date and time of the hearing. If you don’t go, you will lose your case.

What can I do before going to court?

What you do before court depends on who is suing you: a debt buyer or an original creditor

If a debt buyer is suing you

“Debt buyers” are debt collection agencies that “buy” debt from creditors. They buy it for a small percentage of what it is worth. The main goal of a debt buyer is to get as much of the debt paid as possible. They often harass people nonstop to get them to pay the debt. There are ways to stop the harassment.

Don’t give out information to debt buyers

Debt buyers often call you even after they sue you, to try to get you to pay all of the debt or make a payment plan. Stay strong! Don’t give them any financial information. If you admit a debt is yours, you could restart an old debt. Never say a debt is yours, even if you know it is. 

Get information on the debt (in writing!)

Without saying the debt is yours, get information from the debt buyers before you do anything else. You can do this when they call you or in a letter. (You can get their address from letters they have sent you.) See the sample Letter to a Creditor Requesting Verification of Debt. Ask:

  • Who is the original creditor?
  • What is the original debt amount?
  • When was the last payment made? and
  • How much is owed? 

Also, ask for statements, a copy of the original contract, and a “chain of title” (documents that say who the debt was sold to each time it was sold). If the statute of limitations (6 years)1 has expired, the debt collector can no longer sue you to collect the debt. 

If the debt buyer sends you documents and you don’t recognize the debts they say you owe, the debt may not be yours. This could be because of fraud or identity theft. You will want to dispute the debt. Ask the company how to dispute the debt and ask for a Fraud Affidavit. 

If an original creditor is suing you

Share your story 

Once you get a summons to court, call or write to the original creditor to ask for information about the debt. When you contact the original creditor, it’s important that you let them know that you missed payments because of a financial hardship. This helps them know you can’t pay the full amount. They don’t need to know the full story but give them a few key statements that show your situation. For example, “I became ill” or “I lost my job” or “my hours were cut” etc.” Don’t be shy about your financial situation. Tell them if you are getting Social Security benefits, SNAP, MassHealth or any other government assistance. If you are “collection proof,” tell them this. If you don’t have the ability to pay, be honest about it.  

Negotiation tips

Be friendly but firm 

Be careful how you communicate. Don’t be rude. Debt collection lawyers are more likely to be flexible with you if you seem sincere and polite. Also, many debt collectors are willing to create a plan that helps you pay your debt. 

Make sure you write down the debt collectors' name in case you have to file a complaint against them for violating any laws.

Hang up if you need to 

If you’re dealing with a debt collector on the phone and things aren’t going well, don’t be afraid to hang up and call back. You might get a different person to talk to that you have an easier time with. Getting creditors to work with you can be frustrating. It may take several calls until you get someone who is willing to work with you and accept the amount that you’re willing to pay. Keep trying and don’t get frustrated! 

What is an Answer, and do I have to file one?

An Answer is a written statement that tells your side of the story. Your Answer explains:

  • what is wrong in the complaint and why, and
  • things the plaintiff did that hurt you or were wrong related to the debt collection.

In small claims court you don’t have to file an Answer to the summons. But it can help to file one because:

  • It can help you plan what you want to say in court.
  • The Answer includes your defenses. This makes sure that the clerk-magistrate hears your argument. The clerk-magistrate is like a judge.
  • Filing an Answer may lead the plaintiff to dismiss or settle the case if their claim is weak.

To file an Answer, you can fill out the Small Claims Answer form or write it in a signed letter. You might include in your Answer:

  • Why you do not owe the money the plaintiff claims,
  • Why you do not owe as much money as the plaintiff claims, and
  • the laws the plaintiff broke.

You file your answer with the clerk-magistrate and send a copy to the plaintiff. The plaintiff must get a copy of the Answer within 20 days of you getting the complaint. 

If you do not file an Answer, you can tell the clerk-magistrate your defenses and claims during your hearing.

What are counterclaims?

You can file a Small Claims Counterclaim form if you have claims against the creditor suing you, like if you think they owe you money. But it is not required. You must also send a copy of the form to the plaintiff

In a counterclaim, you are saying, “Even if I do owe the creditor money, the creditor owes me money because the creditor did something wrong.” When you put a counterclaim in your answer, you are asking for money for damages from the creditor. If the creditor owes you for damages, it may mean you should pay the creditor less than the amount you owe. Sometimes the damages equal as much as you owe or more. It is likely that you have counterclaims, even if you do not think you do.

A counterclaim is you suing the creditor. If you go to trial, you have to prove the things you say happened in your counterclaim.

Examples of counterclaims in unpaid bills cases

  • The creditor or collection agency did something illegal in trying to collect the bill.
  • When you made the purchase, the creditor told you something that was untrue about the item. For example, the item was new when it really was used.
  • The creditor promised to provide a service, like make a repair, and did a poor job.
  • The creditor is charging you fees or interest that is against the law.
Can I transfer my case to civil court?

Yes. You can file a motion to transfer a small claim to a regular civil court. You need to file the motion before the small claims trial. You may want to do this if you have a counterclaim. This is when you have a claim against the creditor.  

Important


In small claims court, plaintiffs can’t appeal cases that they lose. But the creditor would be allowed to appeal in civil court.

Next Steps

To learn what to do at your small claims hearing, see The Small Claims Court Process for Debt Collection

Resource Boxes
More Resources
Helpful Links
Money_Debt_Small claims helpful links

District Court locations: Find your court address and phone number.

Guide to virtual hearings: Learn how to connect by video or phone.

Center for Social Justice intake form: Apply for free legal help with a small claims debt collection case. 

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